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08/30/89 Thaddeus E. Moore, v. the Industrial Commission

August 30, 1989





543 N.E.2d 1062, 188 Ill. App. 3d 31, 135 Ill. Dec. 494 1989.IL.1342

Appeal from the Circuit Court of Rock Island County; the Hon. Jeffrey O'Connor, Judge, presiding.


JUSTICE LEWIS delivered the opinion of the court. BARRY, P.J., and McNAMARA, WOODWARD, and McCULLOUGH, JJ., concur.


Claimant, Thaddeus Moore, was awarded compensation for a work-related injury he received while employed by the respondent, International Harvester Company. At the hearing before the arbitrator, it was determined that claimant was entitled to 20 weeks of temporary total disability , $34 in medical bills, and 85 1/4 weeks of permanent partial disability for 55% loss of the use of his right foot. The arbitrator also determined that the respondent was entitled to a credit of $4,139.20, an amount previously paid to the claimant, and which was approximately equal to the amount of TTD owed to the claimant.

Respondent appealed the arbitrator's decision to the Industrial Commission (Commission) and, at the hearing on review before the Commission, the respondent attempted for the first time to obtain an additional credit for another previous payment of $4,811.82 made to the claimant on or around March 26, 1980, for the injury which was the basis of the claimant's compensation award. Because the respondent knew of this credit at the time of the hearing before the arbitrator and failed to request credit for this payment at that hearing, the Commission, in a separate summary decision, rejected the respondent's claim for the credit. In another summary decision, the Commission affirmed the arbitrator's decision, and since neither the claimant nor the respondent appealed the Industrial Commission's decision, that decision became final.

Subsequently, the respondent partially paid the claimant the PPD compensation awarded by the Commission, but withheld from its payment $4,811.82, the amount of the compensation the respondent had attempted to claim as a credit before the Commission on review and which was specifically rejected at that time. Because of the underpayment, the claimant filed a petition with the Commission for an assessment of penalties pursuant to section 19(k) and for attorney fees pursuant to section 16 of the Workers' Compensation Act (Ill. Rev. Stat. 1987, ch. 48, pars. 138.19(k), 138.16).

After the hearing on the claimant's petition for penalties and attorney fees, the Commission found that the respondent's intentional underpayment of the $4,811.82 was unreasonable and granted the claimant's petition. The Commission awarded claimant a penalty award of $8,820.09, 50% of the entire original PPD compensation award, and attorney fees in the amount of $1,764.00, 20% of the penalty awarded. Respondent appealed this decision to the circuit court. The circuit court did not disagree with the Commission's determination that a penalty award was appropriate, but the court did conclude that the Commission's determination of the amount of the penalty and, correspondingly, the amount of the attorney fees, was erroneous as a matter of law. Accordingly, the circuit court reduced the penalty awarded to the claimant by the Commission to $2,405.91, 50% of the amount of the PPD compensation which remained unpaid by the respondent, and reduced the amount of the attorney fees granted to $481.18, 20% of the reduced penalty. The claimant appeals.

On appeal, the respondent does not controvert its liability regarding the amount of TTD and the amount of PPD originally awarded to the claimant, or the Commission's determination that its failure to pay the entire award was unreasonable. The only concern presented is the amount of the penalty to be awarded pursuant to section 19(k) of the Workers' Compensation Act for the underpayment of the PPD award. (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(k).) Thus, the only issue before this court is the statutory construction of section 19(k).

Section 19(k) states as follows:

"In case where there has been any unreasonable or vexatious delay of payment or intentional underpayment of compensation, or proceedings have been instituted or carried on by the one liable to pay the compensation, which do not present a real controversy, but are merely frivolous or for delay, then the Commission may award compensation additional to that otherwise payable under this Act equal to 50 % of the amount payable at the time of such award. Failure to pay compensation in accordance with the provisions of Section 8, paragraph (b) of this Act, shall be considered unreasonable delay." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 48, par. 138.19(k).

The entire controversy raised in this case centers upon the meaning of the phrase "amount payable at the time of such award" used in section 19(k), i.e., does this phrase mean the amount of the original PPD compensation award which remains unpaid at the time the penalty is awarded, as the respondent contends and as the circuit court held, or does it mean the entire amount of the original PPD compensation award, as the claimant contends. Since this controversy involves a question of law, this court is not bound by the decision of the Industrial Commission or the circuit court. Butler Manufacturing Co. v. Industrial Comm'n (1981), 85 Ill. 2d 213, 422 N.E.2d 625.

Our research reveals that this specific issue has not been determined in previous Illinois cases; therefore, we must first consider the rules of statutory construction. Generally, the rule is that, to determine the construction of a statute, a court must ascertain and give effect to the legislature's intent. To determine this intent, the courts "may properly consider not only the language used in a statute, but also the reason and necessity for the law, the evils sought to be remedied, and the purpose to be achieved." (Stewart v. Industrial Comm'n (1987), 115 Ill. 2d 337, 341, 504 N.E.2d 84.) Where the statutory language is clear, there is no need to resort to other aids for its interpretation. (Board of Trustees v. Shaw (1985), 136 Ill. App. 3d 671, 483 N.E.2d 976.) When construing the statute, it is assumed that the legislature did not intend an absurd result. (Stewart v. Industrial Comm'n, 115 Ill. 2d 337, 504 ...

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